City officials face trial on complaints Immunity ruling reversed in public works agency whistle-blowing dispute

November 14, 1998|By Gerard Shields | Gerard Shields,SUN STAFF

A three-member panel of federal appeals judges in Richmond, Va., has ruled that top-ranking city Department of Public Works leaders must face a civil trial over allegations that they violated the civil rights of two city employees critical of a controversial landfill repair project.

The ruling from the 4th U.S. Circuit Court of Appeals late Thursday evening overturns a ruling by U.S District Judge Frederic N. Smalkin in Baltimore. Smalkin had ruled that city administrators, because they are government officials, were protected by immunity in their comments and actions.

The three-member appeals panel ruled that Public Works Director George G. Balog and two division chiefs, Robert Guston and Leonard Addison, could be held personally responsible and must stand civil trial over complaints that they violated the free-speech rights of two whistle-blowing employees.

Public Works managers Jeanne Robinson and David Marc sued the three men, claiming that their supervisors retaliated against them for their criticism of 1995 repairs to the city's Quarantine Landfill.

Robinson, the acting division chief of the Bureau of Solid Waste engineering division, and Marc, her assistant chief, alleged that the city improperly awarded a landfill repair contract to L. F. Mahoney Inc. of Baltimore.

Robinson and Marc alleged that Mahoney received the contract as part of a "contractor-friendly" policy in the city administration to reward companies that contributed to Mayor Kurt L. Schmoke's re-election campaign. The employees provided records showing that the department raised more than $500,000 in contributions from companies doing business with the city.

Balog, Schmoke and Mahoney deny the accusations. Balog contends that Robinson and Marc are disgruntled employees and blames them for the landfill woes. Robinson and Marc are seeking a combined $1.5 million in their suit.

After the repairs were completed, the two complained that Mahoney was being paid to haul sediment from the landfill leachate pond even though the hauling did not take place. A subsequent review by city auditors found that the city paid at least $762,675 for landfill repairs initially approved at $563,435.

Balog said the project costs increased because Robinson and Marc delayed the project with their accusations. The allegations sparked an investigation by the U.S. attorney's office and the FBI.

After the complaints about the project, Robinson and Marc said, they were demoted and were kept "out of the loop" of department meetings concerning the leachate pond. The two were given supervisory jobs with fewer responsibilities, they contend.

Although the appeals court ruling does not determine the truth or validity of Robinson and Marc's claims, it does support the employees' contention that their complaint should be heard.

"Because the speech concerned the corrupt misuse of public funds and because plaintiffs were called to provide their statements both by federal law enforcement officers and by a governmental board, it should have been apparent that the speech was constitutionally protected," wrote Chief Judge J. Harvie Wilkinson.

City officials said the ruling does not address the merits of the case and should not be viewed as supporting the claims of Robinson and Marc.

Yesterday, Balog again called the suit "unsubstantiated allegations brought about by two disgruntled employees out of 6,000 Public Works employees."

Howard Schulman, who represented Robinson and Marc, welcomed the appeals court ruling. The Baltimore attorney said yesterday that the free-speech protection is particularly important because federal officials investigating the matter solicited comments from the two employees.

"They were reluctant players in all of this," Schulman said. "The court emphasized that in the ordinary public workplace, speech is not protected."

The judges upheld Smalkin's decision that city taxpayers could not be held liable in the case. The appeals court determined that if Robinson and Marc's allegations are true, the action did not result from a city government policy.